HIGH COURT OF LESOTHO
NATIONAL GENERAL INSURANCE DEFENDANT
by the Honourable Mrs Acting Justice A.M. Hlajoane on the 29th day of
plaintiff in this case has sued the Defendant for damages in the
total amount of M35,000.00 arising from the death of plaintiffs son
as a result of the negligent driving of vehicle BRF 564 FS. This
vehicle was at the time of the accident driven within Lesotho along
the Main South 1 road at or near Motsekuoa junction. The motor
vehicle was insured by the Defendant.
amount claimed is made out as follows:-
of M225.00 hospital expenses.
of M4 500 for funeral and transport expenses.
of M20,000 for raising the deceased's head.
of Ml0,200.00 for contumelia.
claim is made in terms of Motor Vehicle Insurance Order No.26 of
Defendant filed a Special plea couched in the following terms:-
claim upon which the plaintiff's action is based arose on the 27th
April, 1998 being the date of accident and death.
claim in the prescribed form which Plaintiff was required to deliver
to Defendant in terms of section 12 of the Motor Vehicle Insurance
Order 26 of 1989 as amended, was delivered on the 21st March 2000.
was served upon the Defendant on the 8th May, 2000.
Defendant pleads that the period of sixty days allowed in terms of
section 12 (2) of the Motor Vehicle Insurance Order 26 of 1989, as
amended, had not expired when summons in this action was served on
the premises, the Plaintiff's claim against the Defendant is
unenforceable and as the summons was not re-served upon the
Defendant outside the 60 days suspension period and within the two
year prescriptive period, the Plaintiff's claim has prescribed.
DEFENDANT prays that Plaintiff's claim against it be dismissed with
to appreciate the basis on which the special plea is founded I will
make reference to the sections of the Act which the Defendant submits
plaintiff ought to have complied with;
10 (1) of the Act:
"The right to claim compensation under this Order from the
insurer shall become prescribed upon the expiry of a period of two
years as from the date upon which that claim arose:
Provided that prescription shall be suspended during the period of
sixty days referred to in section 12 hereof
(2) No other law relating to prescription shall apply to this order.
I will only extract the relevant subsection under section 12.
"No claim in terms of this order shall be enforceable by legal
proceedings commenced by a summons served on the insurer before the
expiry of a period of 60 days as from the date on which the claim was
send or delivered by hand, as the case may be to the insurer as
provided for in section 10. "
which are common cause are that the cause of action arose on the 27th
April 1998, which is the date of the accident and death. Also that
the claim form was received by the Defendant on the 21st March 2000,
and summons served upon the defendant on the 8th May 2000.I must also
mention that it is not disputed that the summons was served within
the 60 days period. In short, all the facts on which the special plea
is based are indeed a common cause.
argument is that, the Insurance Order was made to afford compensation
to those who have suffered or who are victims of road accidents due
to negligence. He goes further to say, that the purpose of the
prescriptive period is to afford the Defendant some time within which
to consider his position, but not to render the Defendant immune from
not agree any less with the Plaintiff's line of argument, but would
advance it further and say that as there are rules in every game, the
legislature in its wisdom has allowed some fixed periods of time in
the lodging of insurance claims. There is allowance for lodging the
claim with the insurer, for serving summons and re-serving the
also the Plaintiff's contention that the Courts are there to develop
the law, otherwise there would be amendments made day in and day out.
On that, I would say the Courts are there to interprete the law, and
in interpreting the law the primary rule is to give the words of a
statute their ordinary literal meaning with the aim of giving effect
to the intention of the legislature. The Court will depart from
interpreting in the ordinary, literal meaning where there is some
absurdity, Mokhethi v LNIC CIV/APN/57/86.
question of violating the spirit of the Constitution by taking away
the Court's discretion doesn't arise, as the rule of interpretation
still leaves room for the Court in the event of absurdity. But the
language used in the Insurance Order is very clear and not ambiguous,
leaving no room for other interpretation.
the case with Khuto v LNIC and another 1997-98 LLR 90, on the facts
of this case, the delivery of Plaintiff's claim form to the Defendant
on the 21st March 2000, had the effect of suspending the prescription
for a period of 60 days from the date of such delivery. So that the
claim could not be enforceable by legal proceedings commenced by a
summons served on the Defendant before the expiration of a period of
60 days. This is precisely what the plaintiff in this case has done
by serving the summons before the expiration of 60 period. If my
calculations be correct from 21/03/00 to 8/05/00 is only 49 days not
without doubt therefore that the summons in this case was served
prematurely, as a result rendering the action unenforceable in terms
of section 12 (2) of the Motor Vehicle Insurance Order 26 of 1989,
Lesotho National Insurance Company v
Sekhesa C of A (civ) No.36 of 1994 as cited in Khuto v LNIC supra.
But as was eloquently shown by my brother Ramodibedi J in the same
case, that a summons which is served prematurely is in effect not a
nullity as may be re-served. Since we have not been told that such
was the position, the special plea by the Defendant is upheld with
Plaintiff : Mr Mohau
Defendant : Mr Grundlingh
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